Can evidence of a health care provider's custom and practice be admissible at trial as habit evidence to prove a fact or standard of care? Can such evidence be proof in support of due care or lack thereof sufficient to support or oppose a motion for summary judgment for or against a party? Can such evidence arise from a creative imagination and be a poor excuse for medical negligence? The simple answer to all questions is yes. Therefore, the courts must choose to exercise much scrutiny and discretion before allowing circumstantial evidence to be admissible creating an inference of due care or lack thereof.

The discussion begins with the seminal Court of Appeals decision in Halloran v. Virginia Chemicals, 41 N.Y.2d 386 (1977), a product liability case in which the defense sought to introduce evidence of plaintiff's "usage and practice" to use an immersion coil to heat the water into which the Freon (the product) was placed causing the explosion seriously injuring the plaintiff.

The plaintiff, an automobile mechanic, on cross-examination by defense counsel denied ever doing this. The defense offered a witness prepared to testify that he not only saw plaintiff using the immersion coil to heat the Freon on previous occasions, contrary to warning label, but also warned plaintiff of the danger as well. Plaintiff's objection to this proposed testimony was sustained by the trial judge relying on the well-settled rule that extrinsic evidence cannot be used to impeach a witness on collateral matters. The Second Department affirmed, and a question of law was certified for review.

The Court of Appeals, in reversing judgment for plaintiff and granting a new trial, held for the first time that habit evidence of carelessness or carefulness may be admissible under limited circumstances to prove the actor was negligent or not negligent on the occasion in question. In this case, if the auto mechanic had habitually or regularly used the immersion coil to heat water into which the refrigerant container was placed, evidence of that habit was admissible with a proper foundation to prove the plaintiff followed such a procedure on the day of the explosion, and that such evidence in this case was not collateral since it would explain the explosion, and therefore, did not violate the rule against using extrinsic evidence solely to impeach credibility on a collateral issue.

The court reasoned:

Evidence of habit or regular usage, if properly defined and therefore circumscribed, involves more than unpatterned occasional conduct, that is, conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances; it involves a repetitive pattern of conduct and therefore predictable and predictive conduct. On this view, the excluded evidence was offered to show a particular method of executing a task followed by the mechanic, who, on his own testimony, had serviced 'hundreds of air-conditioning units and used 'thousands of cans refrigerant. If on remittal the evidence tends to show that the mechanic used an immersion coil a sufficient number of times to warrant a finding of habit, or regular usage, it would be admissible to aid the jury on its inquiry whether he did so on the occasion in question.

However, the Court cautions that on no view, under traditional analysis, can conduct involving other persons or independently controlled instrumentalities produce a regular usage because of the likely variation of the circumstances in which such conduct will be indulged. Proof of a deliberate repetitive practice by one in complete control of the circumstances is quite another matter and it should therefore be admissible because it is so highly probative. Such conduct is more predictive than the frequency (or rarity) of jumping on streetcars or exercising stop-look-and-listen caution in crossing railroad tracks. (emphasis added ).

Under Halloran, before testimony of habit is "allowed the party tendering the evidence must" show on voir dire "that he expects to prove a sufficient number of instances of the conduct in question."

It should be noted that Halloran did not affect the long-standing pre-existing evidentiary rule regarding the use of evidence of business, professional or other institutional custom or practice in so far as it is relevant to issues other than the exercise of due care.

In Davis v. Blum, 70 A.D.2d 583 (2d Dept. 1979), the Second Department reversed a defendant's verdict, holding that it was reversible error to allow evidence of alleged alcoholism in order to show that he tendered to exercise "poor judgment", and to introduce opinion evidence that the plaintiff exhibited a so-called "denial syndrome", which would tend to make him disregard competent medical advice and then chose to undergo a contraindicated surgical procedure.

The court stated: "In our opinion such evidence is akin to evidence of character and habit which is generally inadmissible in civil cases to raise the inference that a party acted in a particular way on the occasion in issue."

The issue in Davis was whether the defendant Blum had urged the plaintiff to undergo the elective inguinal hernia repair, which was admittedly dangerous under the circumstances and should not have been recommended and performed. The surgery allegedly caused plaintiff to suffer a massive stroke leaving him permanently unable to walk or speak.

However, evidence of similar acts in the past may be relevant to prove intent or the absence of mistake and therefore discoverable. Davis v. Solondz, 122 A.D.2d 401 (3d Dept. 1986), citing Matter of Brandon, 55 N.Y.2d 206 (emphasis added).

In Davis, discovery was permitted of prior lawsuits involving defendant performance of allegedly unauthorized dental work without prior consent because defendant's intent and absence of mistake was at issue. The evidence was considered "material and necessary" to the prosecution of the action.

In certain dental malpractice actions, custom and practice evidence has been allowed as circumstantial evidence in defense of the claim. In Rigie v. Goldman, 148 A.D.2d 23, 543 (2d Dept. 1989), a claim based on lack of informed consent regarding removal of an impacted wisdom tooth, the Second Department held that evidence of a dentist's routine practice of advising patients of risks associated with the surgical procedure, such as permanent numbness, was admissible as circumstantial evidence that he acted in conformity with routine practice.

In Rigie, the plaintiff testified at trial that the defendant Dr. Levin, the oral surgeon, told her that the surgical procedure might cause her to experience some pain and numbness for a week or two. Plaintiff claimed that she was not otherwise informed of the dangers of the procedure and that extraction of the wisdom tooth was the only course of treatment for her condition. As a result of the surgical procedure, plaintiff claimed she suffers from permanent paresthesia of the lip, chin and tongue which can only arise by the severing or injuring of a nerve in the oral cavity.

Dr. Levin testified that he had no independent recollection specifically of what he told the plaintiff regarding risks associated with removal of an impacted wisdom tooth. The court permitted Dr. Levin to testify, over objections from plaintiff's counsel, as to his routine practice developed over 19 years of practice as a specialist in oral and maxillofacial surgery and followed in every instance of thousands of wisdom teeth extraction that he invariably tells his patients prior to removal of an impacted wisdom tooth of the risks and complications of the procedure, including the possibility of permanent numbness of the tongue, chin and lip. He also tells those patients that no alternative to extraction exists to alleviate the condition but that he could treat the condition with antibiotics or by cleaning the infected area. Although, Dr. Levin could not recall the specifics of the conversation with the plaintiff prior to the extraction, he remembered delivering a warning to her concerning the dangers attendant to oral surgery.

Further, Dr. Levin's dental assistant for the prior eight years was permitted to testify as to Dr. Levin's consistent practice of informing patients of the usual risks associated with an extraction of an impacted wisdom tooth including admonition that temporary or permanent numbness of the lip, tongue or chin may result. The dental assistant testified that in the hundreds of surgical procedures she witnessed involving extraction of wisdom teeth, Dr. Levin, without exception, had issued a warning to the patient of the dangers associated with the surgical procedure prior to the administration of anesthesia to the patient. Following Dr. Levin's disclosures, the dental assistant's routine was to ask the patient if he/she had any further questions, and if not, she would present the informed consent form to the patient to sign in her presence, and the dental assistant would then date and sign the form as witness. The signed informed consent was admitted into evidence, and signature identified.

The Second Department, in affirming judgment for the defendant and upholding the admissibility of the aforesaid testimony as circumstantial evidence of habit followed by the defendant, explains:

The choice of legal theory has important ramifications with respect to the evidentiary ruling at issue in this case. Because the conduct of the parties is measured by the standard negligence analysis, the habit evidence at issue must be reviewed within the context of the principles espoused in Halloran rather than within the traditional rule applicable to routine business or professional tasks. Considering the trial record in that context, we are of the opinion that the testimony to which the plaintiff objects provided an adequate number of prior instances of specific, repetitive conduct by Dr. Levin when confronted with a patient presenting a similar condition to rise to the level of habit. Moreover, Dr. Levin was in complete control of the circumstances in which the operative procedure was performed. Thus, while creating no presumption that the practice was followed in the particular instance at issue, the testimony of Dr. Levin as to his routine practice, corroborated by his dental assistant, was properly admissible to support an inference by the jury that the practice was followed on the particular occasion in question (Halloran v. Virginia Chems, supra, 41 N.Y.2d at 386, 393 N.Y.S.2d 341, 361 N.E.2d 991). The weight and value to be accorded such testimony that Dr. Levin did not warn her of the dangers associated with the surgical procedure were for determination by the jury.

In Rigie, the court was careful to point out that expert testimony was required in order to establish the applicable standard of care to be followed in determining whether informed consent was obtained.

However, in Gushlaw v. Roll, 290 A.D.2d 667 (3d Dept. 2002), the Third Department, in distinguishing the holding in Rigie, held that defendant, an oral maxillofacial surgeon, was not permitted to offer testimony of himself and his dental assistant as to the general custom and practice of the manner in which they handle patients during surgery.

In Gushlaw, the defendant performed an extraction of the lower right wisdom tooth following which plaintiff's decedent experienced pain in his jaw, neck and left shoulder. Ultimately, plaintiff's decedent was diagnosed with two cervical herniated discs and underwent surgery to remove them. The plaintiff also sought to rely on the doctrine of res ipsa loquitur raising an inference of negligence which was rejected by the court, reversing a jury verdict for plaintiff and granted a new trial.

The court, in citing Halloran and Rigie, reasoned as follows:

Defendant further contends that Supreme Court erred in not allowing him and his dental assistant to testify as to their general practice in the manner in which they handle patients during surgery. We disagree, "New York courts have long resisted allowing evidence of specific acts of carelessness or carefulness [, except in carefully circumscribed instances,] to create an inference that such conduct was repeated when like circumstances were again presented" (Halloran v. Virginia Chems, supra, 41 N.Y.2d at 386, 393 N.Y.S.2d 341, 361 N.E.2d 991). The cases permitting the use of such evidence traditionally have been "limited to situations involving the performance of routine business or professional tasks" (Rigie v. Goldman, 148 A.D.2d 23, 26 543 N.Y.S.2d 983), which includes the repetitive manner in which a physician informs his or her patients of the risks involved in a particular type of surgery (see, id., at 29, 543 N.Y.S.2d 983). However, the repetitive "hornbook" warning conveyed by a physician to prospective surgical patients "is scarcely analogous to that of [an oral surgeon] performing surgery wherein each patient and the nature of his or her medical condition is unique as are the actions of the operating doctor." (Glusaskas v. Hutchinson, 148 A.D.2d 203, 206, 544 N.Y.S.2d 323" (emphasis added).

In Glusaskas v. John E. Hutchinson, III, M.D., P.C., 148 A.D.2d 203 (1st Dept. 1989), the First Department held that the trial court's decision to permit jury to view videotape of the defendant performing a similar operation to that performed upon plaintiff's decedent was highly improper, inflammatory and prejudicial, requiring a new trial.

The plaintiff's decedent died in the operating room. The autopsy determined cause of death was a "laceration of aorta sustained during surgical repair of infected prosthetic mitral valve. Internal hemorrhage." The defendant performed this surgery as well as a prior surgery for aortic and mitral valve stenosis with replacement of both valves. During the surgery in question, the defendant used an osculating saw to cut the sternum and marked hemorrhaging occurred and caused the patient's death.

During direct examination of the defendant surgeon, defense counsel was permitted to introduce into evidence a videotape of defendant's performance of another heart valve replacement operation six years after the fatal surgery and two to three weeks before the start of this trial. Over strong objection by plaintiff's counsel, the trial judge, after viewing the videotape in camera and conducting a voir dire on its admissibility, ruled that it was relevant to show the jury how the procedure was done. Not surprisingly, a defense verdict ensued.

The First Department, in reversing this decision and granting a new trial, explained the holding in Halloran as follows:

Indeed, the holding in Halloran v. Virginia Chemicals Incorporated, supra relaxes the traditional rue only to the extent of accepting that in certain instances, such as products liability litigation, proof of regular usage or habit might be warranted where deliberate and repetitive practice is involved. The instant allegation of medical malpractice certainly does not present a situation comparable to that of a purportedly defective packaged refrigerant, the subject of the dispute in Halloran v. Virginia Chemicals Incorporated, supra. The manufacture or use of an inanimate object is scarcely analogous to that of a physician performing surgery wherein each patient and the nature of his or her medical condition is unique as are the actions of the operating doctor. It is crucial that evidence of a person's specific acts of carelessness or carefulness on other occasions is generally inadmissible even when the underlying circumstances of the prior or subsequent conduct was similar to the one in contention. Here, the circumstances of the surgery performed in Glusaskas and that depicted in the videotape were not alike. Not only was the tape prepared exclusively for the trial, thus providing Dr. Hutchinson with an opportunity to use special, if not extraordinary, care in the filmed operation (and defendant admits that more time was taken on the demonstrated procedure than is normally done), but the medical and physical condition of the two individuals involved was, as heretofore noted, different."

The court explains that the patient involved in the video operation was a male in his late 40s or early 50s whose physical condition differed in a number of respects from Rose Glusaskas, including the fact that he was much larger and healthier, that his ventricular valve rather than aorta adhered to the sternum and his heart was not nearly so enlarged. Further the patient on video was undergoing coronary artery bypass surgery. The videotaped operation was further buttressed by defendant's oral testimony and went far beyond instructional purpose

The Court of Appeals in Rivera v. Anilesh, 8 N.Y.3d 627 (2007) reversed the First Department in holding evidence of dentist's routine procedure for administering injections of anesthesia prior to tooth extraction admissible pursuant to habit evidence rule, allowing inference that the same procedure was used in treating the plaintiff.

The defendant, prior to extracting plaintiff's lower molar tooth for complaints related thereto, performed a "lower left mandibular block injection" in order to numb the area by this tooth. According to plaintiff, she continued to have sensation in the area and defendant gave her a second injection in the same area, at which time plaintiff experienced extreme pain like an electric shock. However, the injections numbed plaintiff's mouth, and defendant performed the tooth extraction. Subsequently, the plaintiff purportedly developed fever, pain and swelling in her mouth, received follow up care and treatment from defendant, and three oral surgeons (the first diagnosed TMJ) and ultimately was diagnosed with severe infection requiring a three-week hospitalization.

Plaintiff asserted causes of action for malpractice and lack of informed consent, alleging defendant negligently performed the injections of anesthesia and tooth extraction, and failed to properly manage the tooth extraction.

Defendant moved for summary judgement dismissing the complaint, relying on her deposition testimony and affirmation from an expert oral surgeon. Defendant testified she did not recall treating plaintiff for lower molar tooth problem and therefore could not recall what occurred during the extraction. She did state that the administration of this type of injection was a "routine procedure" that she did "every day" to "at least three to four or five" patients and that she was a practicing dentist since 1982. Defendant further explained that a second injection of anesthesia was required in 15-20% of her cases. She provided a step-by-step description of the procedure she used to give injections to patients, and claimed that when a second injection was necessary, she administrated it at the same site as the first injection. Defendant noted that if a patient complained of unusual pain or any unexpected events occurred during treatment, she would make a notion in the medical chart and no such note existed for plaintiff.

The Court of Appeals, in reversing the Appellate Division and allowing such habit evidence by defendant to support summary judgement under Halloran and shift the burden to plaintiff, states the following rationale:

The Appellate Divisions have generally adopted the proposition that normal documentation and notification protocols, routine warning to patients and the processes for undertaking certain noninvasive medical procedures can qualify as habit evidence. In contrast, evidence concerning a physician's surgical practice has been deemed inadmissible under the theory that every surgery is necessarily unique and varies depending on the nature of the patient's medical condition and the actions of the doctor.

Without commenting on the propriety of these decisions, the record here supports the admissibility of Dr. Anilesh's routine procedure for administering injections of anesthesia under the standard articulated in Halloran, in light of the frequency that this technique was used in Dr. Anilesh's dental practice and the nature of the routine conducted. Dr. Anilesh explained that she had been practicing as a dentist since 1982. Even by a conservative estimate, this testimony would indicate that Dr. Anilesh performed this procedure in the same manner thousands of times.

Nor do we believe that the nature of this injection process renders it unsuitable for consideration as habit evidence. Dr. Anilesh described the specific procedure that she used when injecting an anesthetic and her expert confirmed that this procedure was within the accepted standard of care for dentistry. Relatedly, there is no evidence suggesting that Dr. Anilesh's pre-extraction injection procedure would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient. This record therefore contains "proof of a deliberate and repetitive practice"—the mundane administration of a local anesthetic prior to a relatively routine tooth extraction—by a trained, experienced professional "in complete control of the circumstances" (Halloran v. Virginia Chems, supra, 41 N.Y.2d at 386, 393 N.Y.S.2d 341, 361 N.E.2d 991). We conclude that Dr. Anilesh's habit evidence was properly considered by Supreme Court in conjunction with the motion for summary judgment and that it was sufficient to shift the burden to Rivera to provide evidence creating an issue of fact as to whether Dr. Anilesh committed malpractice." (emphasis added).

In Soltis v. State, 188 A.D.2d 201 (3d Dept. 1993), the Third Department, in a case involving the issue of vicarious liability, held that the state should have been permitted to introduce evidence that is was the custom and practice of physicians' assistants and nurses at correctional facility clinic to advise inmates that treating physicians were not state employees. The medical malpractice claim concerned a lymph node biopsy performed by Dr. Scors, an independent contractor causing spina accessory nerve damage. The PA who had allegedly given plaintiff notice was no longer employed and a currently employed PA was permitted to testify to same.

In its opinion, the court states: "there is nothing in the Halloran, decision, however, to suggest an intent to narrow the traditional evidentiary rule respecting the admissibility of business, professional or other institutional custom or practice on matters other than negligence or due care."

Part Two of this article will further discuss admissibility to prove a business or professional practice versus proof of due care or lack thereof.

Alan W. Clark is of counsel to the Law Firm of Duffy & Duffy in Uniondale and managing partner of the Law Firm of Alan W. Clark and Associates, L.L.C.